The Attorney General of Canada (on behalf of the United States of America) v. Viscomi

[Indexed as: United States of America v. Viscomi]

Ontario Reports

Ontario Superior Court of Justice,

K.L. Campbell J.

May 24, 2013

115 O.R. (3d) 606 | 2013 ONSC 2829

Case Summary

Extradition — Evidence — Identification — United States seeking respondent's extradition to stand trial for child luring — Offender interacting with victim through Skype video call and causing her to engage in sexual activity — Record of the case stating that subscriber information from ISP revealed that IP address associated with offence was assigned to respondent at relevant time — IP subscriber information providing foundation for reliable inference that respondent was perpetrator of offence — Respondent committed for extradition.

The United States of America sought the respondent's extradition to stand trial for child luring. The offender communicated with a 17-year-old woman online. They ended up on a Skype video call that permitted the offender to view the young woman through a webcam. She could not see him. He persuaded her to engage in sexual activity. The record of the case stated that the police were able to trace the communications back through a residential Internet Service Provider in Ontario to an IP address that was assigned to the respondent at the relevant time. The subscriber information possessed by the ISP with respect to the IP address included the respondent's name and home address. The only issue between the parties was whether there was sufficient evidence identifying the respondent as the perpetrator of the offence to justify his committal for extradition.

Held, the application should be granted.

In cases turning on circumstantial evidence, the extradition judge is obliged to engage in a limited weighing of the evidence. More particularly, the extradition judge must ensure that the circumstantial evidence is reasonably capable of supporting the inferences that the prosecution suggests ought to be drawn by the trier of fact. Beyond that, it is not for the extradition judge to evaluate the comparative strength of competing factual inferences. The IP subscriber information identifying the respondent provided the foundation for a reliable inference that the respondent was the perpetrator of the offence. The mere existence of a possibility that someone else, who might have had access to the IP address, could have committed the offence did not undermine the reasonable nature of the inference that the crime may well have been committed by the person assigned the use and control of the IP address at the time of the offence. [page607]

R. v. Chandra, 1975 CanLII 1294 (BC CA), [1975] B.C.J. No. 1036, 29 C.C.C. (2d) 570 (C.A.); R. v. Ward (2012), 112 O.R. (3d) 321, [2012] O.J. No. 4587, 2012 ONCA 660, 296 O.A.C. 298, 267 C.R.R. (2d) 198, 97 C.R. (6th) 377; R. v. Zarubin, [2004] S.J. No. 62, 2004 SKCA 14, 241 Sask. R. 292, 60 W.C.B. (2d) 507, consd

Other cases referred to

R. v. Arcuri, [2001] 2 S.C.R. 828, [2001] S.C.J. No. 52, 2001 SCC 54, 203 D.L.R. (4th) 20, 274 N.R. 274, J.E. 2001-1731, 150 O.A.C. 126, 157 C.C.C. (3d) 21, 44 C.R. (5th) 213, 50 W.C.B. (2d) 512; R. v. B. (D.), [2007] O.J. No. 1893, 2007 ONCA 368 ; R. v. Campbell, 1999 CanLII 2372 (ON CA), [1999] O.J. No. 4041, 155 O.A.C. 143, 140 C.C.C. (3d) 164, 44 W.C.B. (2d) 66 (C.A.); R. v. Chau, [2012] O.J. No. 3284, 2012 ONCA 501; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321, [2001] O.J. No. 209, 140 O.A.C. 185, 153 C.C.C. (3d) 433, 104 A.C.W.S. (3d) 1053, 50 W.C.B. (2d) 49 (C.A.); R. v. Legare, [2009] 3 S.C.R. 551, [2009] S.C.J. No. 56, 2009 SCC 56, 396 N.R. 98, 14 Alta. L.R. (5th) 1, EYB 2009-166722, J.E. 2009-2212, 249 C.C.C. (3d) 129, [2010] 1 W.W.R. 195, 70 C.R. (6th) 1, 313 D.L.R. (4th) 1, 469 A.R. 168; R. v. Medina, [2010] O.J. No. 1416, 2010 ONCA 261, 88 W.C.B. (2d) 46; R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134, [2006] O.J. No. 446, [2006] O.T.C. 112, 205 C.C.C. (3d) 70, 38 C.R. (6th) 376, 68 W.C.B. (2d) 773 (S.C.J.); R. v. O'Kane, [2012] M.J. No. 307, 2012 MBCA 82, 284 Man. R. (2d) 72, 292 C.C.C. (3d) 222, [2013] 3 W.W.R. 320, 104 W.C.B. (2d) 396; R. v. Sazant, [2004] 3 S.C.R. 635, [2004] S.C.J. No. 74, 2004 SCC 77, 348 N.R. 1, 266 D.L.R. (4th) 357, J.E. 2006-1149, 210 O.A.C. 376, 208 C.C.C. (3d) 225, 193 C.C.C. (3d) 446, 69 W.C.B. (2d) 447; R. v. W. (G.), 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075, 93 O.A.C. 1, 32 W.C.B. (2d) 84 (C.A.); Republic of Italy v. Caruana, [2007] O.J. No. 2550, 2007 ONCA 488, 157 C.R.R. (2d) 1, 74 W.C.B. (2d) 355, affg [2004] O.J. No. 5851 (S.C.J.) [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 474]; United States of America v. Anderson (2007), 85 O.R. (3d) 380, [2007] O.J. No. 449, 2007 ONCA 84, 219 O.A.C. 369, 218 C.C.C. (3d) 225, 153 C.R.R. (2d) 20, 74 W.C.B. (2d) 353 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 159]; United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33, 268 D.L.R. (4th) 1, 351 N.R. 1, J.E. 2006-1461, 209 C.C.C. (3d) 353, 39 C.R. (6th) 207, 143 C.R.R. (2d) 140, 69 W.C.B. (2d) 711, EYB 2006-107828; United States of America v. Huynh, 2005 CanLII 34563 (ON CA), [2005] O.J. No. 4074, 202 O.A.C. 198, 200 C.C.C. (3d) 305, 66 W.C.B. (2d) 680 (C.A.); United States of America v. Leonard (2012), 112 O.R. (3d) 496, [2012] O.J. No. 4366, 2012 ONCA 622, 268 C.R.R. (2d) 185, 296 O.A.C. 258, [2012] 4 C.N.L.R. 305, 97 C.R. (6th) 111, 291 C.C.C. (3d) 549, 104 W.C.B. (2d) 91; United States of America v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106, 70 D.L.R. (3d) 136, 9 N.R. 215, 30 C.C.C. (2d) 424, 34 C.R.N.S. 207; United States of America v. Thomlison (2007), 84 O.R. (3d) 161, [2007] O.J. No. 246, 2007 ONCA 42, 219 O.A.C. 322, 68 Admin. L.R. (4th) 247, 216 C.C.C. (3d) 97, 72 W.C.B. (2d) 451 [Leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 179]

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 153(1) (b), 172.1 [as am.], Part XVIII [as am.]

Extradition Act, S.C. 1999, c. 18, s. 29(1)

Authorities referred to

Watt, David, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2012)

APPLICATION for an order committing the respondent for extradition. [page608]

Faiyaz Amir Alibhai, for applicant Attorney General of Canada.

Julian N. Falconer and Julian K. Roy, for respondent/accused.

K.L. CAMPBELL J.: —

I

Introduction

[1] The United States of America seeks the extradition of the respondent, Marco Viscomi, also known as Mark Viscomi, an Ontario resident, for the crime of child luring.

[2] It is alleged that on the night of January 5-6, 2012, the respondent communicated with a 17-year-old young woman, who lives in the United States, by a variety of electronic means over the Internet. They met first in a "chat room". Then they communicated by means of "Skype-chat". Finally, they ended up on a Skype video call that permitted the respondent to view the young woman through a webcam, but which prevented the young woman from seeing the respondent. It is alleged that during the course of their electronic interactions that night, the respondent increasingly coerced, threatened, extorted and otherwise manipulated this naïve young woman in ways that, ultimately, caused her to expose her breasts to the respondent, and then engage in a series of explicit sexual and sexually violent activities with her 13-year-old sister for the respondent's prurient, voyeuristic pleasure.

[3] The offence was quickly discovered by an older sister, and in turn, the father of the young women, who immediately contacted the local police. The contents of the Skype-chat session were preserved. Further, by forensically examining the computer used by the young woman, the police were able to trace the offensive communications back through a residential Internet Service Provider ("ISP") in Ontario to a numerical, ten-digit Internet Protocol ("IP") address in Ontario. From early December of 2011 to late January of 2012, that IP address was assigned specifically to the respondent. The subscriber information possessed by the ISP with respect to this IP address included not only the respondent's name, but also his specific home address in Ontario.

[4] There is no dispute between the parties that there is ample evidence of the alleged offence of child luring. There can be no question that, based on the evidence contained in the certified record of the case, the person who communicated electronically with the young female complainant on the night in question is guilty of the offence of child luring, contrary to s. 172.1 of the [page609] Criminal Code, R.S.C. 1985, c. C-46. The perpetrator clearly communicated with someone by means of a "telecommunication" device, knowing he or she was under 18 years of age, for the purpose of facilitating the commission of the offence of "sexual exploitation" contrary to s. 153(1)(b) of the Criminal Code. See R. v. Legare, [2009] 3 S.C.R. 551, [2009] S.C.J. No. 56, 2009 SCC 56, at paras. 25-42.

[5] The only issue between the parties is whether there is sufficient evidence identifying the respondent as the perpetrator of this criminal offence to justify his committal for extradition to the United States.

[6] The Attorney General argues that there is sufficient evidence of identification. In advancing this argument, the Attorney General relies upon the following pieces of evidence:

The chat session log and the complainant's computer revealed the screen name and account name used by the perpetrator of the offence of child luring.

The screen name and account name used by the perpetrator of the crime was traced back to a numerical, ten-digit IP address in Ontario.

According to the residential ISP in Ontario, the IP address associated with the crime was assigned, between December 6, 2011 and January 20, 2012, to "Mark Viscomi" at a specific residential address in Ontario. As already mentioned, the crime took place on the night of January 5-6, 2012.

On the respondent's valid Ontario driver's licence, in the name of "Marco Viscomi", his residential address is listed as the same residential address as the address associated with the relevant IP address identified in the business records of the ISP.

[7] The Attorney General contends that based on this evidence, it is a reasonable inference that the respondent was the perpetrator of the offence. The IP subscriber information identifying the respondent is not conclusive evidence that the respondent committed this offence but, according to the Attorney General, it is sufficient evidence identifying the respondent as the perpetrator to justify an order committing him to extradition to the United States.

[8] On the other hand, the respondent contends that this evidence is not sufficient evidence to justify his extradition for trial in the United States. The respondent argues that this evidence does not logically connect him to this offence, but amounts [page610] to no more than speculation that he may have been the perpetrator of the offence.

II

Analysis

A. The legal standard for committal under the Extradition Act

[9] Under s. 29(1) of the Extradition Act, S.C. 1999, c. 18, a judge is obliged to order the committal of the person sought if there is admissible evidence of conduct that, had it occurred in Canada, "would justify committal for trial" for the alleged offence, and the judge is satisfied that the person is the person sought by the extradition partner. In other words, like a justice conducting a preliminary inquiry under Part XVIII of the Criminal Code, an extradition judge will generally order the committal of the person sought to be extradited upon concluding that there is admissible evidence upon which a reasonable jury, properly instructed, could convict the person. See United States of America v. Sheppard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, [1976] S.C.J. No. 106.

[10] An extradition judge is permitted to remove evidence from judicial consideration if the judge is satisfied that the evidence is so manifestly unreliable or defective that it should be disregarded and given no weight. See United States of America v. Ferras; United States of America v. Latty, [2006] 2 S.C.R. 77, [2006] S.C.J. No. 33, 2006 SCC 33; Republic of Italy v. Caruana, [2004] O.J. No. 5851 (S.C.J.), at para. 153, affd [2007] O.J. No. 2550, 2007 ONCA 488, 157 C.R.R. (2d) 1, at para. 16, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 474.

[11] In cases turning on circumstantial evidence, the extradition judge is obliged to engage in a limited weighing of the evidence. More particularly, the extradition judge must ensure that the circumstantial evidence is reasonably capable of supporting the inferences that the prosecution suggests ought to be drawn by the trier of fact. Beyond that, however, it is not for the extradition judge to evaluate the comparative strength of competing factual inferences. In other words, provided that the inferences advanced by the prosecution are among the inferences that are reasonably supported by the circumstantial evidence, the extradition judge must proceed, in determining the sufficiency of the evidence, on the basis of those inferences. See R. v. Arcuri, [2001] 2 S.C.R. 828, [2001] S.C.J. No. 52, 2001 SCC 54; R. v. Campbell, 1999 CanLII 2372 (ON CA), [1999] O.J. No. 4041, 140 C.C.C. (3d) 164 (C.A.), at paras. 4-8; [page611] R. v. Sazant, [2004] 3 S.C.R. 635, [2004] S.C.J. No. 74, 2004 SCC 77, at para. 18.

[12] In United States of America v. Leonard (2012), 112 O.R. (3d) 496, [2012] O.J. No. 4366, 2012 ONCA 622, 291 C.C.C. (3d) 549, Sharpe J.A., delivering the judgment of the Court of Appeal for Ontario, articulated the legal test to be applied by an extradition judge at this stage of the extradition process, at para. 31, as follows:

The extradition judge applied the correct test for committal: was there available and reliable evidence upon which a reasonable jury, properly instructed, could convict a sought person for the corresponding Canadian offence listed in the Authorization to Proceed. . . . Where, as in this case, the evidence is circumstantial in nature, an extradition judge must weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences the trier of fact will be asked to make. "If the inferences required are within the field of inferences available on the whole of the evidence, nothing else matters".

(Emphasis added; citations omitted)

[13] Finally, it is important to appreciate that it is not the responsibility of an extradition judge to cull out cases that may be viewed, on all of the evidence, as weak or unlikely to result in the conviction of the person sought. Nor is it the responsibility of an extradition judge to assess potential defences that might be advanced at trial by the person sought. All of those issues are for the trier of fact in the foreign jurisdiction. As stated by Moldaver J.A., as he then was, in United States of America v. Thomlison (2007), 84 O.R. (3d) 161, [2007] O.J. No. 246, 2007 ONCA 42, 216 C.C.C. (3d) 97, at para. 47, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 179:

To summarize, I am satisfied that if there is some evidence, that is available for trial and not manifestly unreliable, on every essential element of the parallel Canadian crime, upon which a jury properly instructed, could convict, the test for committal will have been met. In that regard, it matters not whether the case against the person sought is "weak" or whether the prospect for conviction "unlikely". The ultimate question of guilt or innocence is for the trial court in the foreign jurisdiction.

(Emphasis added)

[14] Similarly, as Doherty J.A. stated in United States of America v. Anderson (2007), 85 O.R. (3d) 380, [2007] O.J. No. 449, 2007 ONCA 84, 218 C.C.C. (3d) 225, at para. 28, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 159, while an extradition judge must undertake a "limited qualitative evaluation" of the evidence tendered by the requesting state, this responsibility

. . . does not envision weighing competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decide [page612] whether a witness is credible or his or her evidence is reliable. Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.

(Emphasis added)

B. Distinguishing reasonable inferences from impermissible speculation

[15] An inference is a deduction of fact that may logically and reasonably be drawn from another fact, or series of facts, that are found or established in the proceedings. It is a conclusion that may properly be drawn, but need not necessarily be drawn in all of the circumstances. Needless to say, when assessing circumstantial evidence, it is often very difficult to distinguish reasonable permissible inferences from impermissible speculation. See Mr. Justice D. Watt, Watt's Manual of Criminal Evidence (Toronto: Carswell, 2012), at 12.01.

[16] While reasonable inferences need not be "compelling" or "easily drawn" from the evidence and need not be the only potential inference from the evidence, reasonable inferences should flow logically from the evidence based upon common sense and collective human experience. Reasonably drawn inferences are not, however, conclusions based upon mere supposition, conjecture, imagination, speculation or an educated guess. See R. v. Munoz (2006), 2006 CanLII 3269 (ON SC), 86 O.R. (3d) 134, [2006] O.J. No. 446, 205 C.C.C. (3d) 70 (S.C.J.), at paras. 21-31; R. v. W. (G.), 1996 CanLII 427 (ON CA), [1996] O.J. No. 3075, 93 O.A.C. 1 (C.A.), at para. 62; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321, [2001] O.J. No. 209, 153 C.C.C. (3d) 433 (C.A.), at paras. 39-40; United States of America v. Huynh, 2005 CanLII 34563 (ON CA), [2005] O.J. No. 4074, 200 C.C.C. (3d) 305 (C.A.).

C. The present case -- Applying the governing legal principles

[17] In my view, in all of the circumstances of the present case, the respondent should be committed for extradition to the United States of America. I am satisfied that there is sufficient admissible evidence that would justify the committal of the respondent for trial if the alleged offence of child luring had been committed in Canada. I am satisfied that the evidence in the certified record of the case permits the reasonable inference to be drawn that the respondent was the perpetrator of the offence. While the IP subscriber information identifying the respondent is not conclusive evidence in this regard, in my opinion, it is sufficient evidence identifying the respondent as the perpetrator to legally justify an order committing him to extradition to the United States. [page613]

[18] According to the certified record of the case, the subscriber information from the residential ISP in Ontario revealed that the ten-digit, numerical IP address associated with the child luring crime in the United States was assigned, throughout the entire time period between December 6, 2011 and January 20, 2012 -- including the very date and time of the alleged offence (i.e., the night of January 5-6, 2012) -- to the respondent, "Mark Viscomi", at a specific residential address in Ontario. Further, the respondent's valid Ontario driver's licence, in the name of "Marco Viscomi", displayed his residential address as the exact same residential address as the one associated with this IP address, as identified by the residential ISP.

[19] In my view, one reasonable and logical inference that might well be drawn from this evidence is that it was the respondent who committed the crime of child luring since the residential ISP identified his ten-digit numerical IP address as the one associated with the crime. While it certainly remains theoretically possible that someone else, who might have also had access to this IP address, could have committed the offence, there is no evidence in the certified record of the case that supports such a possibility. Furthermore, the mere existence of this possibility does not undermine the reasonable nature of the inference, based upon logic, common sense and human experience that the crime may well have been committed by the one and only person (i.e., the respondent) assigned to the use and control of this specific IP address at the time of the offence.

[20] The appellate court authorities on the topic support this conclusion. See, for example, R. v. Chandra, 1975 CanLII 1294 (BC CA), [1975] B.C.J. No. 1036, 29 C.C.C. (2d) 570 (C.A.), at p. 573 C.C.C.; R. v. Zarubin, [2004] S.J. No. 62, 2004 SKCA 14, 241 Sask. R. 292, at paras. 12-20; R. v. B. (D.), [2007] O.J. No. 1893, 2007 ONCA 368 ; R. v. Medina, [2010] O.J. No. 1416, 2010 ONCA 261, at para. 4; R. v. Chau, [2012] O.J. No. 3284, 2012 ONCA 501, at para. 4; R. v. O'Kane, [2012] M.J. No. 307, 2012 MBCA 82, 292 C.C.C. (3d) 222, at paras. 47-51.

[21] In R. v. Chandra, the accused was acquitted at trial on a directed verdict motion of the offence of criminal negligence in the operation of a motor vehicle causing death. The trial judge found that there was no evidence identifying the accused as the driver of the vehicle that struck and killed the elderly pedestrian crossing the street. The only evidence of identity that was led at trial came from the investigating police officer, who testified that, at the scene of the accident, the person who admitted being the driver of the vehicle identified himself, with a valid driver's licence and other vehicular documentation, as "Prakash Chandra" [page614] with a specific residential address. In setting aside the acquittal and ordering a new trial, the British Columbia Court of Appeal concluded that there was some evidence of identification. McIntyre J.A., as he then was, delivering the judgment of the court, made the following comments, at p. 573 C.C.C., regarding "name similarity" as identification evidence:

In my opinion, mere identity of name affords some evidence of identity of a person. When accompanied by other factors such as the relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a licence or other document of significance, its weight is strengthened. The trier of fact when such evidence is before it, whether Judge alone or jury, must consider it, weigh it and reach its determination. When such evidence is adduced to the trier of fact it cannot be said there is no evidence.

(Emphasis added)

[22] In R. v. Zarubin, the accused was convicted of uttering a death threat to a member of Parliament. The complainant had received a phone call in his office. The unknown caller identified himself as "George Zarubin", and proceeded to criticize the work of the complainant. As he became more agitated, the caller used stronger and more threatening language, ultimately stating that he was going to "take him away" permanently and "get rid of him". Interpreting this conversation as a threat on his life, the complainant contacted the police. His telephone was equipped with a caller identification feature which revealed the ten-digit phone number from which the threatening phone call originated. A short time later, the accused was arrested alone in his car. A witness from Rogers Wireless testified that the telephone number displayed on the complainant's phone was registered to George Zarubin, and that a call had been placed from that ten-digit cellphone number to the complainant's office number earlier that day. The accused argued, however, that the Crown had failed to prove that he had made the call given that his son lived with him and might have had access to his cellphone. Relying upon R. v. Chandra, amongst other authorities, the Saskatchewan Court of Appeal upheld the conviction of the accused, concluding that this evidence of identity was sufficient to support the conviction of the accused. Sherstobitoff J.A., delivering the judgment of the court, stated, at para. 19:

These judgments, along with many others from trial courts, show that the identification of a person with a name, whether by a party to a telephone call, by a person at the scene of a crime, or by a person referring to a document, is admissible as a piece of circumstantial evidence that may be considered, particularly along with other evidence, as probative of identity.

(Emphasis added) [page615]

[23] In arguing that the IP subscriber information in this case does not provide the foundation for a reasonable inference that he was the perpetrator of this offence, the respondent relied heavily upon R. v. Ward (2012), 112 O.R. (3d) 321, [2012] O.J. No. 4587, 2012 ONCA 660. This decision considered the constitutionality of the police practice of seeking and obtaining customer information from ISPs in the context of a child pornography case. In concluding that, in the circumstances of that case, the accused had not established a reasonable expectation of privacy in his ISP subscriber information, the Court of Appeal for Ontario commented upon the potential evidentiary significance of such evidence.

[24] The respondent relied upon the comments made by Doherty J.A., who delivered the judgment of the court in R. v. Ward, recognizing that ISP records regarding IP addresses do "not necessarily" mean that the subscriber was using the Internet at the relevant time. For example, at para. 23, Doherty J.A. stated:

The ISP records the dates and times that its IP addresses are assigned to its subscribers. These records identify the subscribers' accounts on which the Internet was accessed at particular times. However that does not necessarily mean that the subscriber himself or herself was using the computer connected to the Internet at that time, or that it was even the subscriber's computer that was connected to the Internet. A wired or wireless network may link multiple computers to a central device referred to as a shared access point. When more than one computer is accessing the Internet through a shared access point at the same time there are additional technical issues that may arise. However, this case is not concerned with multiple computers sharing an access point.

(Emphasis added)

[25] It is important to appreciate that these comments suggest only that ISP subscriber information does not conclusively prove that an individual assigned to an IP address at the time of an offence committed the alleged offence, given the possibility that other individuals may have had access to the Internet via the IP address assigned to the accused.

[26] These comments do not suggest that this renders unreasonable the inference that it may, in fact, have been the accused that was using his assigned IP address at the time of the alleged offence. Indeed, other comments in R. v. Ward support my conclusion on the reasonableness of this inference. It is important to recall that in R. v. Ward, the police sought subscriber information from the ISP (Bell Sympatico) at three very specific moments in time. In that context, Doherty J.A., made the following observations about the significance of the subscriber information sought by the police, at paras. 68-69 and 92: [page616]

The police wanted the information because they believed it could potentially identify the appellant as the person who had anonymously accessed child pornography on three separate occasions over the Internet. Translated into the content neutral language required for the purposes of s. 8, the police wanted the information because of what it could potentially tell them about the appellant's Internet activity on three occasions. They sought to connect an identity to certain activity . . .

. . . Adapting the intervener's metaphor to the evidence adduced here, I would say that the police sought information capable of putting the appellant at a specific place, at a specific time in the course of his travels on the Internet.

As discussed earlier, the police were after information that would potentially identify the appellant, not merely as a Bell Sympatico subscriber, but a person who had engaged in certain activities on three specific occasions on the Internet. The information sought by the police would strip the appellant of his Internet anonymity on those three occasions. This characterization of the target of the police action is not in any way altered because the information provided by Bell Sympatico would not conclusively identify the appellant as the person engaged in those activities. The information would connect his account to those activities and go some distance to identifying him as the person involved in those activities.

(Emphasis added; citation omitted)

[27] Paraphrasing the language from R. v. Ward, at para. 92, and applying it to the circumstances of the present case, the subscriber information from the ISP indicating that the respondent's IP address was the IP address associated with this crime of child luring is information that connected the respondent's IP account to the offence and went "some distance to identifying him as the person involved" in those child luring activities.

[28] At this stage of the extradition process, the Crown need not conclusively prove that the respondent was the perpetrator of this child luring offence. As I have indicated, on the basis of the certified record of the case, it remains possible that someone else might have had access to the respondent's IP address at the time of the alleged child luring offence. It is theoretically possible that another individual had access to the respondent's computer or other device typically used by the respondent to access the Internet. It is also theoretically possible that another individual gained access to the respondent's IP address through some wireless connection. While there is nothing in the certified record of the case that provides any evidentiary support for these possibilities, whether such possibilities are capable of raising a reasonable doubt as to the alleged guilt of the respondent, based on all of the evidence, remains an issue to be determined at trial. [page617]

[29] In my view, at this stage of the extradition process, based upon the evidence outlined in the certified record of the case, a reasonable trier of fact could reasonably conclude that the respondent is guilty of this child luring crime on the basis that the crime was committed by him by means of the Internet accessed though his IP address.

III

Conclusion

[30] In summary, there is sufficient evidence to justify an order committing the respondent for extradition to the United States, pursuant to s. 29(1) of the Extradition Act.

Application granted.

End of Document